NEW YORK COURT LIMITS PROTECTION TO CONFIDENTIAL NEWS MATERIALS

By ALEX S. JONES

Published: July 8, 1987

New York's highest court ruled yesterday that journalists' notes or other materials obtained from nonconfidential sources were not covered by a state law protecting news organizations from disclosing information gathered for a news article.

The Court of Appeals ruled, 4 to 3, that the shield law of 1970 applied solely to confidential sources or to information supplied by confidential sources. [ Excerpts, page B4. ] Journalists and experts on the First Amendment to the Constitution said the ruling significantly limited the protections offered under the shield law. Representatives of several publishers and broadcasters said they would now ask the Legislature to amend the law to include nonconfidential materials. Forced to Surrender Items

Although some constitutional protections remain available, the decision yesterday means that news organizations can be forced to surrender reporters' notes and materials in some cases. The cases would be when such materials have not been obtained from confidential sources, when they cannot be obtained by other means and when they have an important bearing on court investigations or trials.

The shield law states that no journalist can be held in contempt of court ''for refusing or failing to disclose any news or the source of any such news coming into his possession in the course of gathering or obtaining news for publication.''

The Court of Appeals ruled, however, that the legislative intent of the law was that it should apply solely to confidential materials.

In a strongly worded dissent, three judges argued that the statute did not draw a distinction between confidential and nonconfidential materials and insisted that the majority had misinterpreted the legislative intent behind the law. Role of Newspaper

The dissent concluded, ''It is unwise for the judiciary to transmogrify news people into agents of the government to collect evidence.'' Many journalists have argued that strong shield laws reassure the public that reporters are not, in effect, acting as police investigators.

The decision was made in a case in which the Albany County District Attorney, Sol Greenberg, had sought outtakes from a television news program, films or tapes made for a newscast but not used. The station, WTEN-TV in Albany, owned by Knight-Ridder Broadcasting, had interviewed a husband whose wife had disappeared.

Later, her body was found, and the prosecutor said he needed the outtakes for a possible murder indictment against the husband. The husband was indicted without the outtakes, but Mr. Greenberg said he would probably seek the materials again, for the trial.

Knight-Ridder said it had not decided on future responses. Wide Range of Materials

Newspaper and television news executives said they were concerned the decision might encourage prosecutors to issue more subpoenas, for a wide range of notes, outtakes, photographs and other materials routinely used by journalists.

However, the ruling does not mean news organizations are powerless to resist such subpoenas, according to James C. Goodale, a partner in the law firm of Debevoise & Plimpton, who helped write the shield law and who specializes in First Amendment cases. Although Mr. Goodale said the decision was a blow to the protection of journalists, he added, ''Bottom line, we're left with the First Amendment, and I think in another case we have a good chance of winning.''

Mr. Goodale said constitutional protection under the First Amendment provided a qualified protection for notes and similar materials.

To be subject to subpoena, according to the test suggested by the United States Supreme Court in Branzburg v. Hayes in 1972, the Government should show that the material is relevant to a specific probable violation of the law, that it cannot be obtained elsewhere, and that there is a compelling and overriding interest in the information. Limit on Invitation

Significantly, the Court of Appeals noted that the material being sought did not meet what has come to be known as the Branzburg test. Mr. Goodale and other lawyers said that by considering that standard, the court signaled that it regarded the Branzburg test as a legitimate measure and that the ruling was not a blanket invitation to prosecutors to issue subpoenas for reporters' notes.

The courts have tried to interpret the shield law since its passage. Although its wording does not explicitly say the protections apply solely to confidential materials, the courts have most often interpreted it that way, according to Mr. Goodale.

Lower courts have frequently ruled that nonconfidential materials were not protected. Higher courts have consistently applied the constitutional argument.

The result, according to Mr. Goodale, has been that news organizations have been successful in resisting such subpoenas in 85 percent of the cases. States With Blanket Laws

The qualified protection provided by the constitutional argument has been the main pillar to resist such subpoenas throughout the nation, where absolute protections through such statutes as the New York shield law are unusual.

According to Jane Kirtley, the executive director of the Reporters Committee for Freedom of the Press, California, Montana, Nebraska, Nevada, New Jersey and Oregon offer absolute protection of both confidential and nonconfidential materials and sources. New York would have been added to the list had the Court of Appeals decided for Knight-Ridder.

Mr. Goodale said that news organizations nationwide were successful 66 percent of the time in resisting subpoenas. He said the New York percentage had been substantially higher because of uncertainty over what the shield law protected. Because the decision yesterday eliminates the uncertainty, he said, news organizations may not be so successful in the future.

The issue in the New York case arose after WTEN-TV in Albany interviewed Donald Bent in February 1986, when his wife disappeared. After the interview, Mrs. Bent was found dead, and the Albany prosecutor issued a subpoena for the interview outtakes for use in the grand jury investigation. Failure of Amendment

WTEN refused to turn over the outtakes, arguing that they were protected by the shield law and the Branzburg test of constitutionality. A lower court decision that WTEN did not have to turn over the material was overruled by the Appellate Division, and the case went to the Court of Appeals.

The executive director of the New York Newspaper Publishers Association, John D. Kutzer, said his organization would try in the next session of the Legislature to have the shield law strengthened. But that might be difficult. The president and executive director of the New York State Broadcasters Association, Joseph A. Reilly, said, ''I don't think print or broadcast organizations have a lot of friends in the Legislature.''

In the ruling, the court found that the intent of the Legislature regarding the shield law was compellingly demonstrated by the Legislature's failure to pass an amendment to the law in 1981 that would have explicitly included nonconfidential materials.